By PERPETUAL SICHIKWENKWE –
THE Lusaka High Court has thrown out a matter in which Muvi Television sued Zambia Information Technology Communications (ZICTA), the Zambia National Broadcasting Corporation (ZNBC) and two of its former employees over the ‘Mwine Mushi Kasaka’ trademark.
Judge Justin Chashi has since described the suit in which the two former employees Robam Mwape and Webster Chiluba had filed a counter suit over the ownership of the trademark as ‘hopeless’.
Mr Justice Chashi said in his judgment yesterday that Mwine Mushi Kasaka was an unregistered trademark as such,  Muvi TV, Mr Mwape and Mr Chiluba could not claim to own the trademark.
Muvi TV had dragged ZICTA, ZNBC, Mr Mwape and Mr Chiluba seeking an injunction to, among other reliefs, restrain them from producing, procuring for use, advertising or offering for advertisement or otherwise, however any products related to the Mwine Mushi Kasaka product.
Muvi TV wanted an order that the counterfeit Mwine Mushi Kasaka products be destroyed and that the defendants render an account for all profits made, while using the characters of Mwine Mushi Kasaka.
Mr Mwape and Mr Chiluba filed a counterclaim alleging among others that they had suffered loss because Muvi TV was using other people to perform Mwine Mushi Kasaka, which was their copyright.
But Mr Justice Chashi said Muvi TV could not sustainably claim to be exclusively entitled to use the trademark as only a proprietor of a registered trademark could do so in terms of Section 9 (1) of the Act.
Mr Justice Chashi said in the same manner, the counterclaim by Mr Mwape and Mr Chiluba could not stand because the two had not taken steps to register it as a trademark.
“Both the plaintiff’s claim and the 3rd and 4th defendants’ counter claim are hopeless. Accordingly, I dismiss them,” Mr Justice Chashi said.
He said the certificate of registration, which was produced by a certificate’s examiner, who was summoned to court, was invalid because it was not sealed with the seal of the Patent Office to signify the registration of the trademark involved.
Mr Justice Chashi said the action was incompetent, because it was started before the registration of the trademark and was signed by the Registrar on May 2, 2014, some two months or more, after the date of commencement of the action.
He, however, said that to say that the registration was made in 2012 was immaterial as what was material was the fact that the trademark upon which the action was found was an unregistered trademark at the time the action was commenced.
“In other words, the trademark was not actually on the register of trademarks, thereby disentitling the plaintiff from commencing the action,” Mr Justice Chashi said.